1. Applicant's Name: a. Application Date: 10 June 2018 b. Date Received: 27 November 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade of an under other than honorable conditions discharge to honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's request is for reasons of propriety and equity. (The counsel detailed the circumstances surrounding the events that led to the applicant's discharge.) The counsel asserts the applicant's chain of command made a material error of law by charging the applicant with violating Article 134, UCMJ, for knowingly and wrongfully possessing, receiving, or viewing child pornography, because the applicant did not knowingly possess, receive, or view child pornography as the applicant was under the impression the female was either 18 or 21 years of age. The female in question, who was 16 years old at the time, misrepresented herself to the applicant as being 18 or 21 years old, and did not disclose her true age of 16 until after the applicant received the pictures she sent; thus the applicant did not so knowingly. As to equitable bases, the applicant has been the victim of undue harm; in that the applicant has been improperly stigmatized and harmed by the current discharge. The applicant has been deprived of honor and good name, a continuing undue harm. It hinders the applicant in civilian life, specifically due to the heinous nature of the misconduct the applicant was accused of committing. In a records review conducted at Arlington, VA on 20 March 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 6 July 2017 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 15 May 2017, the applicant was charged with the following: The Charge: two specifications of violating Article 134, UCMJ, for knowingly and wrongfully viewing child pornography on 4 June 2015, and on divers occasions, knowingly and wrongfully receiving child pornography between 26 March 2015 and 29 June 2015, both conduct being of a nature to bring discredit upon the Armed Forces. (2) Legal Consultation Date: 16 May 2017 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: General (Under Honorable Conditions) and Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 22 May 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 July 2013 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 11 months, 29 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Germany, Lithuania, Poland / None f. Awards and Decorations: AAM-4; AGCM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1) with its associated documents (CID Reports). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 10 June 2018, with attorney-authored brief; DD Form 214; applicant-authored statement; CID Agent's Investigation Report, dated 29 June 2015; CID Forensic Examination Final Report, dated 28 January 2016; Law Enforcement Report-Final, dated 13 April 2016; Charge Sheet with its associated documents; Request for Discharge in Lieu of Trial by Court-Martial, dated 16 May 2017; two memoranda (recommendations); separation authority's decision memorandum with applicant's acknowledgment; "Tinder Online" Terms of Use; and Terms of Service. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no other acts of significant achievement or valor, and did not support the issuance of an honorable or a general (under honorable conditions) discharge by the separation authority at the time of discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends the discharge was unjust because of propriety and equity issues; in that, his command made a material error of charging him with violating Article 134, UCMJ, for knowingly and wrongfully possessing, receiving, or viewing child pornography, because he did not knowingly possess, receive, or view child pornography as he was under the impression the female was either 18 or 21 years of age, and his discharge has stigmatized and harmed him by depriving him of his honor and good name, and causing a continued undue harm by hindering him in his civilian life, specifically due to the heinous nature of the misconduct he was accused of committing. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. Insofar as his discharge hindering him in his civilian life, perhaps indicating a hindrance to receiving VA and employment benefits. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10, "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 20 March 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20180015247 1